Sunday, June 05, 2011

The AT&T-T-Mobile merger proposal has prompted opponents such as Free Press and others to mount a mass email campaign against the merger. As thousands of identical, or nearly identical, three or four sentence comments have flooded the FCC's electronic docket, discussion of the role these mass campaign web-generated comments should play in the FCC's deliberative process has increased.

Here's my comment on the FCC's consideration of mass comments.

It is a fact of digital-age life that such mass comments increasingly flood administrative agency dockets. To be sure, there are some downsides to this phenomenon, not least of which are the costs imposed on the agency in terms of personnel, data processing, and other resources required to handle the comment tsunami. Nevertheless, there is a value in enabling citizen participation and citizen input in government decisionmaking processes that cannot ignored. While letter-writing campaigns to influence agencies occurred before e-filing became commonplace (the FDA's rulemaking proposal in the 1990s to assert its authority over tobacco generated approximately 100,000 citizen postcards and letters), electronic filing obviously greatly facilitates such citizen input.

While the FCC's merger review proceeding is not technically a rulemaking, the FCC, for procedural purposes and to facilitate public participation, treats it essentially as an informal rulemaking proceeding under the Administrative Procedure Act. With respect to rulemaking proceedings, the APA states simply that the agency shall consider "the relevant matter presented." This directive generally governs the FCC's actions on merger applications as well. In other words, in reaching a decision, the agency can't just ignore relevant facts and arguments presented.

Of course, the directive to consider relevant matter doesn't tell us much at all about the weight to be accorded thousands of identical or nearly identical e-comments. As I mentioned at the outset, the pro-regulatory group, Free Press, is leading a campaign to generate mass comments opposing the merger in which it suggests sending this (or a similar) comment to the FCC:

"AT&T's takeover of T-Mobile would stifle choice and innovation in the market, harm, consumers, and lead to higher prices and fewer jobs nationwide. Don't let AT&T put our mobile future at risk. Please stand with me and reject such reckless consolidation of the mobile industry."

So, the FCC's docket now contains thousands of three sentence comments identical to this one. After you have read the very first one, the next 10,000, or the second 10,000, do not add any "relevant matter presented" at all.

Now, this is not to say that the FCC's decisional process should totally ignore the fact that thousands of identical comments have been submitted. Even taking into account the increasing ease with which Free Press and others can generate mass comments through web-based campaigns, the sheer number of such comments may indicate to the Commission that the AT&T-T-Mobile proposal has generated intense interest among the American public concerning the merger's potential impact and that, much more than in the run-of-the-mill proceeding, the agency should carefully consider such impacts.

But the FCC should take care that it not become, or allow itself to be viewed as becoming, an agency that makes decisions based on counting noses, or that gives undue weight to comment counts. Because if it does so, it will substantially diminish whatever credibility it possesses as an "expert" independent agency that renders decisions based on the facts and the law. Certainly, the agency would destroy any notion that its decisions are "data-driven," as FCC Chairman Julius Genachowski is fond of proclaiming. If you take another look at the mass comment generated by Free Press reproduced above, you will see that it contains no data at all.

Of course, the aversion to mere nose-counting is not a one-way street. For example, AT&T has made a point of highlighting the number of mayors and governors that have submitted comments supporting the merger. Standing alone, the sheer number of these public officials submitting comments shouldn't be outcome-determinative either. But to the extent that individually-drafted submissions by public officials, such as this letter from Arkansas Governor Mike Beebe, contain information concerning present or projected wireless coverage, local businesses, schools, and other institutions that will be affected by increased or faster wireless service, investments made by infrastructure providers in the local area, and the like, they ought to be given considerably more weight than the three-sentence mass comments. Certainly, there is a degree of political accountability that arises when public officials express views on issues that lend credence to the substance of their positions.

In the end, neither the sheer number of mass-produced comments, nor the number of filings of mayors and governors, ought to be as important to the FCC's decision concerning the merger as its fact-based analysis of the wireless marketplace and the public benefits that the merger may be expected to produce. While Free Press and others should not be precluded from generating mass comments, if that is their wish, it is incontrovertible that the FCC's competitive and public benefit analysis is not going to be aided much by such comments.

As readers of this space know, I have been very critical for many years of the FCC's merger review process for reasons I think are entirely valid. A recap with links to several more pieces is here. And I remain critical of this Commission's pronounced pro-regulatory proclivities and general disposition to downplay marketplace competition and dynamism. Be that as it may, it does not seem too much to ask, as the merger review process moves forward, that the Commission separate the wheat from the chaff when it considers comments.